The legal process going forward

By
Kirk Tousaw
on August 1, 2005

There has been a lot of speculation about what happens next. First off, let me be clear about one thing: Marc, Michelle and Greg are not going to be taken to the US immediately. They have due process rights in Canada and there is a legal process. Those of you following Renee’s case basically know the system: it is virtually identical for Marc, Michelle and Greg.Preliminary Matters

The US government began its investigation some 18 months ago. It sought and obtained a federal court grand jury indictment against Marc, Michelle and Greg (I’ll just say “Marc” from here on for ease of reference) in May, 2005. That indictment charges Marc with the three conspiracy counts (producing marijuana, selling seeds, money laundering); they are all felonies and carry sentences ranging from 10 years to life imprisonment.

The US Dept. of Justice then made a request to Canada under treaty. Basically, the US asked Canada to provide it with assistance in the investigation. The US also asked for extradition. In both situations, the Justice Minister (Irwin Cotler) signed off on (a) providing the assistance; and (b) issuing an “authority to proceed” with the extradition.

Based on the investigation, and at the request of the DEA, the VPD sought and obtained a search warrant from a BC Supreme Court judge. That warrant allowed Friday’s raid and the arrests of our friends.

What Happens Next?

Bail: Michelle has been granted release after posting a $25,000 cash bail (which was obviously quite difficult to raise). The Crown (ie, the Canadian prosecutors that will be handling the case) is asking for the same amount to release Greg. It is also requesting that Marc be kept in custody.

This type of very high bail is unusual. Refusing to release a non-violent offender is very rare. There are several factors that go into the decision. First, will the person pose a risk of danger to the public if released? Next, will the person show up for court? Finally, will the administration of justice be brought into disrepute if the person is released?

The bail hearing for Greg is Tuesday at 10:00am in the BC Supreme Court (typically courtroom 52 or 55). Marc may be up at the same time. At this point John Conroy will be speaking to bail, perhaps for both of them (though each will likely want to retain separate counsel to fight the extradition).

The Extradition Process

Extradition is guided by the Extradition Act. There will be an extradition hearing before a BC Supreme Court judge. At the hearing, we will have an opportunity to argue that extradition is not proper.

One requirement of the Extradition Act is that the conduct be illegal in Canada. There has been a lot of speculation about whether selling seeds is illegal in Canada. From the language of the CDSA, it appears that selling viable seeds is a criminal offence in Canada (I suppose it may be an open question as to whether it is constitutionally permissible to make seed selling illegal, but that has not been previously argued and is an uphill battle).

The extradition hearing basically asks the judge to decide whether the person actually committed an act that would be punishable in Canada. If so, the judge issues a “committal order” which sets the stage for the actual extradition.

The judge’s decision is appealable to the BC Court of Appeal and, with leave, to the Supreme Court of Canada.

If a committal order is issued, the Justice Minister then has to decide whether to issue a surrender order. This is a discretionary decision in some ways, though the statute provides for certain situations where the Minister may NOT order surrender.

One of the key sections is 44. That lists reasons why the Minister SHALL NOT order surrender:

Quote:
44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or

(b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.

Obviously we will be arguing that both subparagraphs apply. Marc is a victim of political persecution and the US system is the poster child for unjust and oppressive laws. Another reason the Minister may deny surrender is if it would shock the Canadian conscience.

Assuming the Minister issues a surrender order, Marc is entitled to seek judicial review of that decision. This is heard in the BC Court of Appeal and, with leave, the Supreme Court of Canada.

If these options fail, Marc would be taken to Seattle to stand trial in US federal court. Any conviction can be appealed to the US Court of Appeal and, with leave, to the US Supreme Court.

The process in Canada can be relatively swift (likely a couple years, though there is a chance that everyone moves quickly and shortens that timeframe). It will almost certainly be very expensive (both for Marc, Michelle and Greg…and for the Canadian taxpayer who is picking up the tab for the Crown, the police, the courts, legal aid). The human cost is immeasurable.